Excerpt: - .....held that it constituted an assignment of the promissory note to the plaintiff. the district judge held against this that it was only a record of proceedings. in this view, he is in my opinion right.6. the second appeal must be dismissed with costs.s.a. no. 1700 of 1923.7. this appeal raises two questions namely, that of adoption already referred to, in my judgment in s.a. no. 1699, and the question, as to whether the vendea of the house in question is entitled to the whole house or only to half. the suit was brought by the minor, adopted son of appudayau, for possession of a house purchased by his deceased adoptive father, on the 20th february, 1916 as against the defendants, who are the sister's son and mother of the deceased. in the alternative, the plaintiff prays that ha be.....

Judgment:

Odgers, J.

1. In the first of these cases, the plaintiff brought a suit on a, promissory note, dated 15th June, 1916, executed by one Balakrishna Chetty, deceased, to Appudayan the deceased adoptive father of the plaintiff. The District Munsif dismissed the suit, holding that the discharge alleged to be evidenced by Exhibit I was proved.

2. The question was raised in this case, as also in the connected S.A. No. 1700 of 1923, whether the plaintiff was in fact the adopted son of Appudayan, and by consent, the evidence on this point taken in the other ease was treated as evidence in this case before the District Munsif was contended by Mr. V.C. Seshachariar, for the appellant, that such a proceeding is wrong in law and that the vakils have no power to bind their clients by such a consent. The matter is, however, concluded by the Full Bench ruling in Jainab Bibi Saheba v. Hyderally Sahib (1920) 43 Mad. 609, that the evidence recorded in a previous judicial proceeding, between the same parties is made admissible in a subsequent proceeding, by the consent of both parties. The suits were heard on the same day, and although the defendants were not the same in the other case, the question of adoption was common to the two oases and all the parties concerned presumably let in their evidence, at one and the same time. As Coutts-Trotter, J., (as he then was) held in the case referred to:

Consent can cure what would otherwise be a defective method of letting in evidence in its substance and context relevant and germane to the issues.

3. Both the Courts, on the evidence of adoption given in the other case, came to the conclusion that the adoption was true.

4. The next point is that the acting District Judge, having disbelieved, as against the District Munsif, Exhibit I, and having found that it is not genuine, ought to have given the defendants an opportunity of letting in further evidence, with regard to this Exhibit I, as it was not challenged before the District Munsif. I am unable to see how the plaintiff could have challenged it there, as it was a matter of defence and all he could do naturally was to cross-examine the defendant's witnesses on it. Further, Exhibit I was supported by three witnesses, D.Ws. 1 to 3. The acting District Judge disbelieved these witnesses, when they said that money was paid to the plaintiff. I think this point also fails.

5. The most substantial point raised in this appeal is that there is nothing to show, on the face of the suit promissory note Exhibit A, that it was executed in favour of a managing member, and it is contended that there must be something, on the face of the document, to show that it is a family debt before the plaintiff can be absolved from the obligation of obtaining a certificate under Section 4 of the Succession Certificate Act. There are cases on both sides of the line. The appellant-defendant here has referred to a case in Venkataramanna v. Venkayya (1891) 14 Mad. 377, where it was held that a certificate in such a case was necessary unless there was something on the face of the bond to show that the debt was due to the joint family. It was held that though Act VII of 1889 applied only to cases of succession, the preamble states that it is intended to afford protection to parties paying to the representatives of deceased parsons. No authorities are referred to in the judgment. On the other hand, in a later case, in Pallamraju v. Bapanna (1899) 14 Mad. 380, Shephard and Boddam, J.J., held that, as the family was admittedly undivided and the plaintiff claimed by survivorship, the Succession Certificate Act did not apply, following a similar case in Subramanian Chetti v. Rakku Servai (1897) 20 Mad. 232. In Pitchaikuttia Pillai v. Ranganadan : AIR1915Mad951(2) , Seshagiri Aiyar, J. sitting as a single Judge, held that where the document stands in the name of an individual member and does not show on the face of it that the debt is due to the family, no certificate is necessary, in the case of a debt due to a Hindu joint family. The cases were all reviewed and in the absence of an authoritative ruling by a Full Bench, I am bound by the later decisions of the Benches of this Court, which Mr. Justice Seshagiri Aiyar preferred. A further point is as to Exhibit K. The District Munsif held that it constituted an assignment of the promissory note to the plaintiff. The District Judge held against this that it was only a record of proceedings. In this view, he is in my opinion right.

6. The second appeal must be dismissed with costs.

S.A. No. 1700 of 1923.

7. This appeal raises two questions namely, that of adoption already referred to, in my judgment in S.A. No. 1699, and the question, as to whether the vendea of the house in question is entitled to the whole house or only to half. The suit was brought by the minor, adopted son of Appudayau, for possession of a house purchased by his deceased adoptive father, on the 20th February, 1916 as against the defendants, who are the sister's son and mother of the deceased. In the alternative, the plaintiff prays that ha be declared entitled to a half-share of the house. As to the adoption, both the Courts have held that the factum of adoption had been established. Much is made in appeal of the fact that by a Will, dated 16th October, 1916, the deceased Appudayau directed that his younger brother's wife should adopt for him, after his death, Veludayan, the minor son of his brother's wife's brother. By Exhibit I, dated 22nd June, 1917, ha revoked the said Will. The testator died on 23rd October, 1917. In Exhibit H, dated 12th December, 1916, Appudayau declared that he had adopted the plaintiff, and the same assertion is repeated in his written statement made in the suit filed by the 1st defendant, Exhibit J. The learned District Judge, to whom the appeal was taken, gives good reasons, at the end of paragraphs 2 and 3 of his judgment, why the plaintiff's adoption should be accepted as true. This has been found by both the lower Courts and is a question of fact and binding on me here. It was also held by the District Judge and not contested before ma, that the sale, evidenced by Exhibit II, was a true transaction, for valuable consideration. Mr. Sashachari, for the appellant, agrees that the District Judge has set out, in paragraph 5, the position correctly, i.e., 'could the property sold, with due regard to plaintiff's interest be wholly allotted to the vendor's share?' The District Judge finds that to do so would be unfair, as the rest of the property, which would devolve on the son, consisted entirely of outstanding debts, which might or might not be good. This, as pointed out by the District Judge, is not a suit for general partition by the vendee, but a suit by a non-consenting co-parcener for a declaration. It seems to me that the plaintiff is entitled to his alternative prayer, namely, half the suit house and the learned District Judge was justified, for the reasons given by him, in coming to the conclusion he did. This appeal is, therefore, dismissed with costs.